The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1887-08-03

ment, and CITED cases In support Of the
position.
He then took up the question as to
whether the court had not been OF
counsel, within the meaning Of the
constitutional provision, and named
"a the substance Of the facts set out In
the plea and affidavit, that the court
had sought out testimony; that he
had urged the finding Of criminal In.
dictments sgsins! the defendant; that
he Lad often repeated to the members
Of the grand july and others. his be-
lief that the defendant was Utility, and
that he had discharged members Of
the grand jury because in his opinion
they were MOI doing their duty In not
finding bills against him. He argued
that thess acts we're within the scope
OF the duties OF the Attorney General,
the law officer OF the State, and that
theee acts were the duty OF him alone
and that II bis honor had performed
these duties, no matter what the mo.
tives, whether good or bad, he had
plsced himself 10 the attitude OF being
counsel within the meaning OF the
constitutional provision. He cited q
case decided by the courts OF this
State where Il was held that one who
had signed an indictment az Attorney
General was thereby di'qualfiS I'd from
afterward. sitting as judge upon the
trial OF the same case. He said II
might be urged that the judge in oil
his conduct upon the bench in the
trial OF q case was amenable to law,
and II he erred he could DO reven cd
aud his error corrected In the Supreme
Court. But the same argument might
be made in any her case where the
Judge was disQualifi. d by the law, and
that even l! bis srrofs could be 70.
versed upon appeal after an unjust
conviction, that there wac no law to
reimburse q defendant FIR his outlay
or for the ineparable injury wrought
by an unjust verdict OF guilty.
Passing, then, 10 consider the action
OF the court 10 d scharging the legally
organised grand jury, he contesded
that that was Fundamentally errone-
neous. II consisted OF q mixed cues.
ton OF law and OF fact.
The court asked for the authorized
on the law, assuming the facts stated
| TO be true.
Gen. Wright then read eection 8 Of
the Bill OF Rights In the Constitu.
ton OF Tennessee: "No man shall
BIS taken, or imprisoned, or disse q ID
OF his freehold, liberties or privileges,
or outlawed, or exiled, or In any mau.
ner destroyed, or deprived OF his life,
liberty, or property. but by the judg.
ment OF his peere or the law OF the
land"
And section IA OF the Bill Of Rights:
mo person ehall be pu. to absw or any
criminal charge, but by pressntmsni,
indictment or impeachment" The
two provisions must DO construed to-
gether-the one supplenentlng the
other. You cannot touch q hair Of
bis head. You shall not even REQ 1ire
him TO answer till he has been indicted
by grand jcry. Now what is the
meaning Of u grand jury7 Obviously,
a grand jury at common law. 1 be-
lieye, may II please Your Honor, thal
u the statutes Of the State OF Tennes
see give the Court the power TO arbi.
trariiy dismiss the giaud Jury, that
they would be held TO be unconstitu
tional, because the very idea OF q
grsnd Jury Is body Tree TO epesk and
Tree to act-a Co ordinate branch Of the
Court. IL does not derive its power
from the Court but from the Constitu.
ton.
The general cited the case Of scroeg.
who occupied the position Of Lord Chic
Justice OF England, who was i'm
peached, one OF the resolutions against
him being that ho had discharged the
grand iary before they had 6nishet
their presentmente, the same bein,
Illegal, arbitrary and q high misde
msanor. He then took up the man
ner OF the formation Of the grand Jury
reading from 1.-THE code and thowi1l
that IL was his, the duty Of the County
Court 10 present two proper ciuEsps,
lreeholders and householder, from
each civil district, a. grand or petit
Jurors for the NEXT term. In default
Of the performances OF that duty the
Court Itself may summon an equal
number OF persons. Then, TO form
the grand Jury, the Court shall direct
the names OF the Jurors In attendance
10 be written on scrolls and placed in
a box or other suitable receptacle and
dawn out by child under ten ytara
Of age; and the thirteen juron whose
namea are thus drawn shall be- the
gsld Jury fir the term" When.
ever sufficient number oil
the jurors OF the original
panel TAIL TO attend before tho grand
jury 10 iorned, the Court may impanel
The grand jury Of 40 many OF the orig.
inal panel a. may attend, and the rect
Of the bystanders. And II none Of the
original panel attend, or no jurors
have been appoinred, the grand Jury
Iey consist entirely OF byetanders. la
either case the jurors composing the
grand idry shall attend until dis.
charged by the Judge or the term ex,
piIes. When any grand iuIors i'm.
paneled In the msde pointed out be
come unable from any cause 20 serve
out the term. or nay DO excused on
any ground, the Court may supply
the vacancy from the original panel
II any, aud from the bystAnders, n
none. The Cout appoints the fore
mau Of the grand jury, and II he /,
discharged or excused alter the fury h
sworn his place may be supplied by
ths Court.
The speaker argued that the jude,
had no power 10 arbitrarily discnsrg,
q Juror, but he could be excused, ol
unless the Juror failed from soma ia
ability TO serve before the bushes o
the Jury 10 hnished, and insisted Thu
In case any Of the members OF IN,
grand Jury do for any cause becom,
unable TO serve, their places mus
fret be filed from the members OF n,
regular panel.
The allegations Of the affidavit and
plea we're then taken mp In detail, ant
the law applied 10 show tina, the dc
ieGdant has not been indicted by ,
! legal grand jury, and ought not 10 b,
cOmpelied 10 alewer the charge nj ali
aud several authorities were quote,
} and anAly Eed In support Of this posi-
! ton.
, The general. In conclusion, aaiJ
: 81 submit, therefore, that the court
1 N II